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Former Army Intelligence officer Adrienne Kinne has a very valuable open secret which, if told under oath, could lead to the first ever conviction of U.S. soldiers on war crimes charges. But since she told her story publicly in an interview with journalist Amy Goodman on DemocracyNow! over three years ago, she has been reluctant to put it to use in the ongoing prosecution in the Spanish High Court of three U.S. soldiers for the murder of Spanish cameraman José Couso.

On May 13, 2008, Kinne went public for the first time with her experiences in military intelligence during the lead-up to the 2003 Iraq war. Prior to the “shock and awe” bombing of Baghdad that preceded the U.S.-led coalition’s ground invasion, Kinne was tasked with filtering through thousands of recorded satellite phone conversations emanating from the Iraqi capital.

An Arabic translation specialist, Kinne grew concerned as she found herself listening not to terrorists and Iraqi militants but to English-speaking international journalists and NGO-workers. After spying on American civilians, she worried she was breaking the law. Her concerns multiplied on receiving an email listing potential targets of the invaders that included various assets of the Baathist regime, as well as the Hotel Palestine. During the previous weeks and days she had been listening in as international journalists based at this hotel spoke to their worried friends and loved ones abroad, reassuring them that they were safe along with 300 media colleagues from several countries, including the United States.

Thus was Kinne moved to address her superior officer, John Berry, regarding the presence of hundreds of journalists who considered themselves safe inside a potential U.S. target. She was told “it was not [her] job to analyze[, but] to collect and pass on information…someone somewhere higher up the chain knew what they were doing.”

Soon after the invasion, the hotel was indeed attacked, killing Couso as well as Ukranian Reuters cameraman Taras Protsyuk. Kinne didn’t know if the soldiers responsible for the attack knew the hotel was a media hub. But after five years of learning more and more about the consistent U.S. disregard for international law in the conduct of the war and after joining Iraq Veterans Against the War, Kinne decided to make her case known “because [she] really hope[d…] that other people who know a lot more […would] choose to do the same thing for the right reasons. And if by speaking out you can encourage other people to…follow suit, I think that’s…what [it]’s all about.”

Since her interview with Amy Goodman, Kinne has not testified before the Spanish court on behalf of Couso’s family. According to José’s brother, Javier Couso, she has stated that she will only testify before a U.S. court, that she believes the true guilty parties lie further up the chain of command. As a former soldier herself, she has expressed reluctance to prosecute fellow soldiers for carrying out orders, a reluctance perhaps encouraged by the U.S. government’s strong stance against whistleblowers. Nevertheless, the Couso case will go to oral arguments sometime this fall, raising the case’s profile and perhaps pressuring Adrienne Kinne to come forward.

Is Independent War Reporting a Crime?

In Spain, the name José Couso is well known in all sectors of society. He was a video-journalist with major TV network Tele5 who was killed in his hotel room by a U.S. tank during the first days of the 2003 invasion of Iraq. Spanish media outlets –even those that supported the invasion – expressed outrage in the wake of his assassination.

In the United States, however, the media has stayed relatively silent on the Couso case despite its enormous implications for international justice, and American diplomatic interference therein. More than eight years after José’s untimely death, his family and friends continue to seek justice for what they see as a blatant case of premeditated murder by U.S. war planners to send a message to journalists: Tell the official version of the war’s narrative or else. The unofficial version goes like this.

On April 8, 2003, about two weeks into the aerial devastation of the Iraqi capital and just days after invading forces entered Baghdad, TV news stations were broadcasting a spectacular demonstration of military power to millions of viewers around the world. Mainstream coverage of the war tended to repeat the crusader narrative of the war’s authors, in which the Coalition of the Willing sought to liberate Iraqis from a WMD-possessing, 9/11-linked Saddam Hussein. But many journalists covering the war were not convinced of the invaders’ good intentions. Arriving in Baghdad, they encountered a bustling metropolis inhabited by normal people – people not interested in spreading tyranny, but in living their lives. As flames engulfed miles upon miles of the urban center and surrounding areas, international journalists were aware that the great majority of the people whose lives and homes were being incinerated were not agents of evil, but human beings.

These independent reporters viewed the war differently than embedded journalists who were given body armor and protection by a cavalcade of armed men. The embedded journalist sees targets as just that – targets. Hearing an officer order fire on a building deemed to harbor the enemy, the embedded journalist has no choice but to believe the officer and hope that the enemy is – in the euphemistic language of war – neutralized.

With scores of embedded journalists serving as military stenographers of the invading, and later the occupying armies, independent journalists were cast as unwilling participants in the other war being fought in Baghdad in 2003 – the war that claimed the life of José Couso among others: the war against witness. It was that war that George W. Bush was waging when he ominously warned all un-embedded journalists to leave Baghdad and follow the war from Central Command Headquarters in Qatar. The war against witness has been fought with ever-higher stakes for decades if not centuries, and it goes on to this day as much in the courtrooms of Spain as in the streets of Gaza.

Killing the Witness

Weeks before the bombing of Baghdad began, Western journalists set up headquarters at the Hotel Palestine on the East bank of the Tigris River after having left their previous base at the Al-Rashid Hotel on the other side of the river. When CNN pulled its personnel from the Al-Rashid, other journalists knew that the Pentagon had identified it as a potential target. As the CNN team was under U.S. protection, the residents of the Al-Rashid followed them to the Palestine, forwarded their coordinates to the Pentagon, and believed themselves safe.

On the morning of April 8, several journalists in the Palestine concentrated themselves on the balconies of the 20-story hotel. There they filmed the activities of the A Company (nicknamed “assassins”) of the 4th Battalion, 64th Armor Regiment, 2nd Brigade, 3rd Infantry Division, U.S. Army. Its tanks spent the morning on the al-Jumuriya bridge over the Tigris shelling various government buildings of the old regime as well as remaining Iraqi military positions. Just 1.7 kilometers from the hotel, camera crews could capture every shot fired by the tanks.

Also visible from the balconies of the Palestine was a pair of less likely military targets: the headquarters of the two Arab media outlets that had set up in Baghdad to cover the war via satellite – Al-Jazeera and Abu Dhabi TV.

Like all journalistic enterprises in Baghdad at the time of the invasion, Al-Jazeera had reported its exact location to the Pentagon months in advance and had clearly marked the outside of its headquarters to avoid any confusion. The network heads did not want to take any chances after U.S. forces bombed their Kabul headquarters early in the 2001 invasion of Afghanistan. But the provision of the exact coordinates of its Iraq offices didn’t stop the United States from targeting Al Jazeera in Basra on April 2. In Baghdad on April 8, meanwhile, , an A-10 Warthog fighter plane from the same 3rd Infantry Division swooped over Hotel Palestine and launched a missile into Al Jazeera’s electrical generator, killing Palestinian-Jordanian journalist Tareq Ayyoub and injuring his Iraqi cameraman.

Some hours later, amid relative calm, the crews at the Palestine had turned their cameras back on the tank division. The heaviest fighting of the day was over, the tanks positioned over the water on the bridge. Without provocation, at 11:45 AM, the tank turned its guns on the headquarters of Abu-Dhabi TV, where a camera had been recording the tanks’ activities all morning from the building’s rooftop.

Footage recovered from José Couso’s camera shows the tank’s machine-gun fire aiming unequivocally at that camera, ultimately destroying it. The personnel of Abu Dhabi TV, who like those of Al Jazeera had reported their exact coordinates to the Pentagon before the invasion and marked their headquarters in giant press tags, were lucky to have escaped the attack alive.

By then, many journalists had left the hotel after a tense morning to cover other areas of the city. But Couso kept filming, and Taras Protsyuk’s camera continued feeding live images to Reuters. Fifteen minutes after attacking Abu Dhabi TV, the tank on the bridge took aim at the Hotel Palestine, lifted its crosshairs to the 15th floor and fired a single anti-personnel shell. Taras, on the 15th-floor balcony, was killed instantly. José, one floor below, was rushed to the hospital, his leg crushed, his stomach gored. Despite a successful leg amputation and several hours of surgery by more than a dozen Iraqi doctors, he died from blood loss. The whole episode was captured on film.

The three media targets attacked that day were the only non-embedded journalistic crews broadcasting unfiltered images of the war live via satellite. Al-Jazeera had long been a target of Bush administration derision, as top-level officials accused the network of outright collusion with bin Laden and Saddam for broadcasting unsavory images of civilian casualties and American hostages. Indeed, the United States continued bombing Al Jazeera installations during the war, seeking to ban it from broadcasting. And if the message the United States was trying to send to independent journalists wasn’t clear enough, the U.S.-led coalition later launched its own Arab-language satellite channelAl-Hurrah, “The free one.”

The Official Stories

The first official story, told just an hour after the attack, claimed that snipers were operating out of the hotel. Forty minutes later, the commander of the 3rd Infantry Division, General Buford Blount, said the tank “was receiving small arms and RPG fire from the hotel and engaged the target with one round. After that, there was no more shooting.” Two-and-a-half hours after that, Pentagon spokesman Brian Whitman admitted the Pentagon’s prior knowledge of the hotel’s journalistic presence but maintained that the tank had received rocket-fire from the hotel.

Contradicting Whitman, CENTCOM spokesman General Brooks said in a press conference the following day that the military “[did]n’t know every place a journalist [was] operating on the battlefield. We [knew] only those journalists that [were] operating with us.” In other words, un-imbedded journalists were fair game.

As news of the U.S. response filtered down to the eyewitnesses of the attack – the journalists who were at the hotel – the official story came under scrutiny: not a single shot was fired from anywhere within earshot of the Palestine, let alone from the very spot where dozens of journalists were watching the action below.

So the next day, Captain Philip Wolford, the tank commander who ordered the shelling of the hotel, told a reporter that he thought an Iraqi spotter was on the roof of the hotel, informing enemy combatants of the tank’s position. This story was repeated by the man who fired the shot, Lt. Shawn Gibson, who said he saw a man with binoculars through the tank’s scope. He emphasized that the “spotter” did not have a TV camera and also noted that he waited ten minutes to receive final clearance to fire the shot. During that time, Wolford’s commanding officer, Lt. Col. Philip DeCamp, was apparently never brought into the discussion on whether or not to fire on the hotel.

All of these official explanations can be traced through the 2004 Reporters Without Borders (RSF) report entitled “Two Murders and a Lie.” According to the Couso family, that report, which concludes that there “was not…a deliberate attack on journalists or the media,” is illegitimate for a number of reasons. First, it relies heavily on the statement of imbedded journalist Chris Tomlinson, a longtime Army Intelligence officer. Second, when the family requested that the report not be submitted as evidence in the case (it does not, after all, mention the attacks on Al Jazeera and Abu Dhabi TV), RSF head Robert Ménard insisted on its inclusion. And finally, a U.S. embassy cable from February 2008 quotes a representative of RSF insulting judge Pedraz’s efforts to keep the case open.

Notwithstanding the report’s conclusions, the soldiers’ explanations suffer from three major problems: the shell was fired five floors below the hotel’s rooftop; second, it doesn’t take a spotter 1.7 kilometers away in a tall building to see a tank in the middle of a bridge; and Protsyuk, who was struck directly by the shell, did have a TV camera, and it happened to be the only TV camera in the entire hotel that was transmitting via satellite in real time.

Moreover, optical experts sent by both the Couso family’s legal team and the judge handling the case agree that a person looking through the tank’s scope, equipped to see details at up to four kilometers, would be able to distinguish the eye colors of those on the balcony from the bridge so there could be no mistaking a Ukrainian cameraman for a fedayeen with binoculars. The soldiers got caught in a lie.

U.S. authorities in Washington ignored the details. Erstwhile Secretary of State Colin Powell sent a letter to the Spanish foreign minister saying that the shot that killed Couso and Protsyuk was fired in proportionate response to “hostile fire” emanating from the journalistic hub. Dick Cheney told reporters “you’d have to be an idiot to believe that [U.S. troops deliberately fired on journalists].” And Commander in Chief Bush responded in his usual laconic fashion: “war is a dangerous place.”

But the colleagues of Couso and Protsyuk, who had been waving to the U.S. soldiers from their hotel balconies the day before the shelling and knew that not a single shot was fired from the hotel, refused to let the United States get away with killing two of their own. Journalists protested in the Spanish parliament demanding a diplomatic course of action to seek justice for a Spanish citizen killed without reason. Massive demonstrations in front of the U.S. embassy in Madrid brought thousands into the streets. And a shattered family with its own history of military service turned its grief into a righteous indignation fierce enough to fuel the fight for justice against all odds.

A Case of Judiciary Independence

After Spanish authorities denied the Couso family’s initial requests to demand an independent investigation into the events of April 8 – instead giving the benefit of the doubt to the U.S. military’s internal investigation – the family decided in consultation with human rights attorney Pilar Hermoso to present a legal case to the Spanish High Court against the three soldiers immediately responsible for José Couso’s death: Wolford, Gibson, and DeCamp.

Ever since Spanish judge Baltasar Garzón ordered the arrest of U.S.-backed Chilean dictator Augusto Pinochet on murder charges citing the doctrine of “universal jurisdiction,” the Iberian nation has earned notoriety for its fiercely independent and tenacious judicial system. But as soon as the Bush administration got word that a Spanish judge was seeking to impose jurisdiction over three U.S. soldiers, its diplomats began pressuring the Spanish government to keep the judiciary in check. Then ruled by the right-wing Popular Party (PP) under President José-María Aznar, the Spanish government was eager to cooperate with the United States in the so-called war on terror, sending troops to Afghanistan and Iraq despite massive public opposition. Indeed, Aznar participated in the planning of the Iraq War on Portugal’s Azores islands with Bush and Tony Blair in an open rejection of UN protocol. Thus, months after the case was presented, the prosecutor’s office (staffed by political appointees of the ruling party) had it shelved for procedural faults.

Nevertheless, with the backing of a major social movement and the support of judge Santiago Pedraz (part of the independent judiciary), the family’s legal team spent the final months of 2003 collecting eyewitness testimony in support of the case. And they grew even more hopeful when the Socialist Party (PSOE), whose candidates had expressed their support for the Couso case during the campaign season, took control of the government in 2004.

What happened to the case over the subsequent years – which we know thanks to a number of U.S. embassy cables released by Wikileaks – reveals the alarming degree to which U.S. officials sought to undermine Spanish sovereignty, and the even more alarming degree to which Spanish officials bowed to their demands.

According to WikiLeaks

A cable dated October 21, 2005 details the rush of high-level (PSOE) Spanish officials – Attorney General Cándido Conde-Pumpido, Justice Minister Juan Fernando López Aguilar, Foreign Minister Miguel Ángel Moratinos, and Vice President María Teresa Fernández de la Vega – to the U.S. embassy after Judge Pedraz issued arrest and extradition warrants for the three soldiers on October 19. They assured the ambassador that despite their public expressions of respect for the judicial process, they would do all they could to kill the case.

In March 2006, the attorney general’s office was able to shelf the case once again, this time claiming lack of jurisdiction. A cable from March 22 written by Ambassador Eduardo Aguirre stresses the responsiveness to Bush-administration demands by the socialist vice president de la Vega, stating that “we are well served by strengthening our level of communication with her.” But the judiciary refused to fold under political maneuvering. In December 2006, the Supreme Court determined that Pedraz did indeed have jurisdiction in the case and effectively reopened it.

This ruling didn’t deter the U.S. embassy or its friends in the Spanish government. After strategizing with Embassy personnel, the chief prosecutor of the National Court, Javier Zaragoza, ordered the government to drop the charges once again. Two years later in 2009 the case was reopened for a brief 2-month period after new supporting evidence surfaced, including Adrienne Kinne’s interview on DemocracyNow!. Rather than seeking to confirm Kinne’s testimony and call her to the witness stand, the government prosecutors refused to even acknowledge that Kinne existed.

Nevertheless, for all the control they exerted over the politicized justice ministry, the U.S. embassy couldn’t tame the Supreme Court, which reopened the case again in July 2010. After submitting a provisional conclusion to the court and issuing another international arrest warrant for the accused soldiers, Judge Pedraz received authorization from the government to travel to Baghdad with a court-appointed team of experts in order to corroborate the evidence submitted by the Cousos. In a last ditch effort to obstruct justice, the government refused to guarantee their security. That didn’t seem to bother the judge too much, nor was he deterred by the harassment of armed U.S.-Iraqi military units who sought to prevent him from accessing various points of interest.

On return, the judge submitted the investigative report based on the trip’s conclusions to the justice ministry and the prosecutor’s office at the beginning of 2011. As that evidence is processed, the Couso family is left waiting for the court to advance the case into oral argument sometime this fall. Meanwhile, their struggle to secure Adrienne Kinne’s testimony continues. If she refuses, the family plans to fly Amy Goodman to Spain in order to confirm before the court that the interview with Kinne of 2008 did indeed transpire.

Whistleblowers under the Gun

Kinne’s reluctance to testify is by no means misguided. On the one hand, she currently works as a military psychologist with the Department of Veterans Affairs where she interacts daily with soldiers responsible for innocent civilian deaths. On the other hand, she has every reason to fear government retribution for her would-be bravery.

Since taking office, the Obama administration has turned its back on government whistleblowers, whom the president praised during his campaign for their “acts of courage and patriotism, which can sometimes save lives[… that] should be encouraged rather than stifled.” His administration has thus far indicted five former government employees under the Espionage Act of 1917, more than any previous president, and he openly defended the harsh conditions of accused whistleblower Bradley Manning at the Marine base in Quantico, Virginia.

The citizen movement in support of Manning that has moved thousands of people into the streets – several of them risking arrest – must not wait for potential whistleblowers to fall victim to government repression before coming to their defense. Despite the violent rhetoric of right-wing pundits and politicians, the brave men and women willing to speak the truth about the exercise of U.S. power may be the greatest hope for advocates of international justice.

Leaked documents give a broad outline of the often-illegal foreign policy of the United States, but only detailed human testimony can fill in the blanks to give the whole truth. International courts demand the whole truth, and so should those who seek global justice. A victory in the Couso case would set an important precedent in the effort to subject the military to the rule of law, and solidarity with whistleblowers may help secure that victory.

V. Noah Gimbel is a contributor to Foreign Policy in Focus, writing from Spain. He can be reached at noah.gimbel@gmail.com